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Naples Estate Planning Lawyer > Blog > Estate Planning > What Is Florida’s Elective Share Statute?

What Is Florida’s Elective Share Statute?


In most states, there are very few restrictions on what someone can put in their will or who they can leave their assets to. Florida is one of the 29 states that requires a testator to either provide for their spouse in their will, or if they do not, the spouse can take approximately 30 percent of the estate as their portion. This is referred to as the ‘elective share’ statute, and while it is optional for the spouse to accept it, they always have the right – which can, in turn, cause issues for the decedent’s other beneficiaries.

Can Override The Will’s Provisions

The elective share is somewhat unique in terms of probate law because it can essentially override the terms of a will in order to give the spouse the portion the law believes is appropriate, though the surviving spouse does have to affirmatively choose to take that share. If they do, they are not treated as pre-deceasing their spouse, and, perhaps most importantly, whether the spouse chooses to take the elective share has nothing to do with any other bequests that they receive in the will – in other words, the surviving spouse does not have to choose between a bequest and their elective share.

This may seem counterintuitive, because unless a spouse has been specifically disinherited, most married people will affirmatively provide for their spouse in their will – which means that many spouses simply choose not to take their elective share (especially if the bequest is significant). However, if two people are still legally married but estranged, the elective share statute is designed to ensure that no surviving spouse is left with nothing. This was especially critical in years past, when a death in the family could mean the passing of the sole breadwinner.

Do Not Wait To Choose

If the surviving spouse does choose to take their elective share, it is important to be aware that the formula used to calculate it includes the entirety of the elective estate – in other words, the deceased’s probate estate plus certain other assets that might pass outside of probate, such as bank accounts, life insurance policies, and private pensions or deferred compensation plan (though this does not include Social Security). This can make arriving at an appropriate amount for the elective share somewhat confusing, though not impossible, with the services of a business evaluator or general appraiser.

If the surviving spouse wants to claim the elective share, they should be aware that they have a short time frame in which to file their election (their intent to claim the elective share) – on or before whichever is earlier: six months from the date they received a notice of administration, which signifies the beginning of probate, or two years from the date of the decedent’s passing. It is possible in very rare situations to seek an extension of the time to file – but the two-year mark is the latest possible date to do so, with no exceptions.

Contact A Naples Estate Planning Attorney Today 

If you have questions, concerns or just want to set up a complimentary consultation to discuss your personal legal issues in a confidential setting, contact James R. Nici, the Managing Partner of Nici Law Firm, a Naples estate planning attorney with almost 30 years of legal experience.  This may be the first step toward ensuring all is how you want it to be going forward. Contact our offices today via our website, or on the telephone at 239-449-6150, to schedule your complimentary consultation.


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